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Articles 1 - 30 of 57
Full-Text Articles in Law
The Principles Of Justice, In Symposium, Propter Honoris Respectum: John Finnis, Richard W. Wright
The Principles Of Justice, In Symposium, Propter Honoris Respectum: John Finnis, Richard W. Wright
All Faculty Scholarship
Many theorists claim that justice is a question-begging concept that has no inherent substantive content. They point to disagreements among justice theorists themselves about basic aspects of the justice theory, such as the nature of corrective justice and the distinction between it and distributive justice, as even further reason to dismiss the concept of justice or to fill it with their preferred theoretical content. Yet most persons perceive that the concept of justice is not an empty shell. Since ancient times it has been thought to encompass not merely a formal equality (treating like cases alike), but also a substantive …
Concurring In Result Without Written Opinion: A Condemnable Practice, Ira Robbins
Concurring In Result Without Written Opinion: A Condemnable Practice, Ira Robbins
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Assessing The New Judicial Minimalism, Christopher J. Peters
Assessing The New Judicial Minimalism, Christopher J. Peters
All Faculty Scholarship
In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …
Legal Institutions In Professor H.L.A. Hart's Concept Of Law, Robert S. Summers
Legal Institutions In Professor H.L.A. Hart's Concept Of Law, Robert S. Summers
Cornell Law Faculty Publications
No abstract provided.
Christians And The Military, Jeffrey C. Tuomala
Christians And The Military, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
Empirical Methods And The Law, Theodore Eisenberg
Empirical Methods And The Law, Theodore Eisenberg
Cornell Law Faculty Publications
One can divide empirical analysis of legal issues into three major branches: (1) the use of scientific empirical analysis by litigants to attempt to prevail in individual cases, (2) the use of social scientific empirical analysis in individual cases, and (3) the use of the empirical methods to describe the legal system’s operation. The first two uses present difficulties that reflect a fundamental limitation on using statistical methods in law: the difference between establishing statistical association and establishing actual causation in an individual case filtered through our adversary legal system. The third use encounters no such obstacle and can aid …
Gender And Privacy In Cyberspace, Anita L. Allen
Gender And Privacy In Cyberspace, Anita L. Allen
All Faculty Scholarship
No abstract provided.
The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii
The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii
McGeorge School of Law Scholarly Articles
No abstract provided.
Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii
Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii
McGeorge School of Law Scholarly Articles
No abstract provided.
Connecting Grounds Of Discrimination To Real People's Real Experiences, Dianne Pothier
Connecting Grounds Of Discrimination To Real People's Real Experiences, Dianne Pothier
Dianne Pothier Collection
From the outset, the prevailing approach to human rights statutes in Canada has been predicated on a closed list of prohibited grounds of discrimination. The early drafts of s. 15 of the Canadian Charter of Rights and Freedoms likewise had a closed list of enumerated grounds, but the final version qualifies those grounds as "in particular", opening the door for a broader application of s. 15. Nonetheless, the Supreme Court of Canada, with the exception of Justice L'Heureux-Dube, has insisted that establishing a prohibited ground, either enumerated or analogous, is a requisite condition to a s. 15 breach. In the …
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Scholarly Articles
Not available.
Baccauaureate Mass Reflection: The Catholic Lawyer: Justice And The Incarnation, John M. Breen
Baccauaureate Mass Reflection: The Catholic Lawyer: Justice And The Incarnation, John M. Breen
Faculty Publications & Other Works
No abstract provided.
What The Jury Must Hear: The Supreme Court’S Evolving Seventh Amendment Jurisprudence, Margaret L. Moses
What The Jury Must Hear: The Supreme Court’S Evolving Seventh Amendment Jurisprudence, Margaret L. Moses
Faculty Publications & Other Works
No abstract provided.
Playing On Words: Judge Richard A. Posner's Appellate Opinions, 1981-82--Ruminations On Sexy Judicial Opinion Style During An Extraordinary Rookie Season, Robert F. Blomquist
Playing On Words: Judge Richard A. Posner's Appellate Opinions, 1981-82--Ruminations On Sexy Judicial Opinion Style During An Extraordinary Rookie Season, Robert F. Blomquist
Law Faculty Publications
No abstract provided.
Evolutionary Statutory Interpretation: Mr. Justice Scalia Meets Darwin, Jeffrey G. Miller
Evolutionary Statutory Interpretation: Mr. Justice Scalia Meets Darwin, Jeffrey G. Miller
Elisabeth Haub School of Law Faculty Publications
This paper examines the seeming contrast between the legal doctrines that the interpretation of statutes can evolve over time and that the interpretation of statutes must be grounded only in their texts, which never change unless amended by Congress. That examination is illuminated by complexity and meme theories. The examination is concluded by applying both doctrines and theories to the question of whether the term “navigable water” in a water pollution control statute includes underground water.
Afterword And Response: What Digging Does And Does Not Do, Patricia D. White
Afterword And Response: What Digging Does And Does Not Do, Patricia D. White
Articles
No abstract provided.
Thoughts On Some Potential Appellate And Trial Court Applications Of Therapeutic Jurisprudence, Steve Leben
Thoughts On Some Potential Appellate And Trial Court Applications Of Therapeutic Jurisprudence, Steve Leben
Faculty Works
To date, the application of therapeutic jurisprudence principles has been concentrated mainly on specialized trial courts: drug treatment courts, domestic violence courts, criminal courts, and juvenile and family courts. Its application to trial courts generally, as well as its application to the appellate courts, remains largely unexplored. This Article considers three areas in which trial and appellate courts may want to consider applying therapeutic jurisprudence.
My conclusions about the application of therapeutic jurisprudence to the appellate courts are admittedly tentative ones: my day job is sitting as a state general jurisdiction trial judge, not as an appellate court judge. Although …
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …
Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan
Deciphering Courts Of Appeals Decisions Using The U.S. Courts Of Appeals Data Base, Tracey E. George, Reginald S. Sheehan
Vanderbilt Law School Faculty Publications
Is one circuit significantly more conservative or liberal than the others? Do circuit courts consistently avoid deciding the substance of certain appeals by concluding that the plaintiffs lack standing? Have state governments been more successful than other parties when they appeal adverse district court rulings? Do appeals courts act in a majoritarian or countermajoritarian manner with regard to elected institutions and the general public? The United States Courts of Appeals Data Base, an extensive data set of courts of appeals decisions, can address these and other questions about the circuit courts. This article describes the background, scope, and content of …
Structuring Criminal Codes To Perform Their Function, Paul H. Robinson
Structuring Criminal Codes To Perform Their Function, Paul H. Robinson
All Faculty Scholarship
This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of …
When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson
When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson
All Faculty Scholarship
Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have …
Regret And Contract "Science", Peter A. Alces
Regret And Contract "Science", Peter A. Alces
Faculty Publications
No abstract provided.
On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar
On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar
Faculty Publications
Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.
Specifically, the Article argues that the …
The Virtue Of Ordered Conflict: A Defense Of The Adversary System, David R. Barnhizer
The Virtue Of Ordered Conflict: A Defense Of The Adversary System, David R. Barnhizer
Law Faculty Articles and Essays
My underlying thesis is that American society is in increasing danger of falling victim to the tendencies against which Hobbes warned, and that we need to understand and deal with the ultimate implications this holds for our political community. Otherwise, we risk ending up with a severe case of ideological balkanization that will undermine and weaken our social system. My concern is that we are well on the way to a state of ideological civil war. If we succumb further it will mean a political culture in which there is little real communication, but only destructive vilification, jockeying for political …
Acknowledgments, Jeremy Paul, Pierre Schlag
Acknowledgments, Jeremy Paul, Pierre Schlag
Publications
CLS 2001 Symposium - Critical Legal Studies (Debut de Siecle): A Symposium on Duncan Kennedy's A Critique of Adjudication: Fin de Siècle (1997).
Judicial Auditing, Matthew L. Spitzer, Eric L. Talley
Judicial Auditing, Matthew L. Spitzer, Eric L. Talley
Faculty Scholarship
This paper presents a simple framework for analyzing a hierarchical system of judicial auditing. We concentrate on (what we perceive to be) the two principal reasons that courts and/or legislatures tend to scrutinize the decisions of lower echelon actors: imprecision and ideological bias. In comparing these two reasons, we illustrate how each may yield systematically distinct auditing and reversal behaviors. While auditing for imprecision tends to bring about evenhanded review/reversal, auditing for political bias tends to be contingent on the first mover's chosen action. Examples of these tendencies can be found in a number of legal applications, including administrative law, …
The Index Of Individual Case Reports Of The Inter-American Commmission On Human Rights: 1994-1999, Richard J. Wilson
The Index Of Individual Case Reports Of The Inter-American Commmission On Human Rights: 1994-1999, Richard J. Wilson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank
The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Making Room For Critical Race Theory In International Law: Some Practical Pointers, Penelope Andrews
Making Room For Critical Race Theory In International Law: Some Practical Pointers, Penelope Andrews
Articles & Chapters
In addition to assessing the pertinence of critical race theory in unmasking international law's colonial, racist and patriarchal underpinnings, this paper attempts to suggest practical ways in which a critical race theoryapproach can enrich the international legal system, by giving a voice to the voiceless and by addressing the conditions of marginality in which much of the developing world is trapped.
This paper will do three things. First, it will peruse the contemporary global situation with respect to international law and human rights. Second, it will assess the contribution of critical race theory in advancing an understanding of, and solution …
Imagining Justice, Robin West
Imagining Justice, Robin West
Georgetown Law Faculty Publications and Other Works
As we approach the new century and the new millennium, those of us who are legal professionals in liberal capitalist democracies need to drastically improve our practices of law if we are to bring those practices in line with our professed ideals. The commodification and marketing of legal services, for example, combined with a nearly blind commitment to overly combative advocacy, puts legal assistance beyond the means of large segments of the public, severely undercutting our commitment to equality before the law. A different and perhaps harder question, however, is whether the ideals against which we judge our practices are …